Religious liberty court fight inevitable

When I talk to people on both sides of the debate over Georgia’s religious-liberty legislation, what’s surprising is how similar the conversations are.

Each side says it’s fighting for a fundamental right the other seeks to trample. Each side cites harms it expects if it loses. But neither side has very many examples of these harms already playing out in Georgia, where LGBT citizens are not a protected class and where free exercise of religion is protected by a lower legal standard than other First Amendment rights.

And, when asked about the harms the other side anticipates — churches being forced to rent their fellowship halls for same-sex weddings, or gay couples being denied a table at a restaurant — they both have the same answer: Well, that will never happen.

Of course. Only the bogeymen I see are real. Only the harms to my side are unconscionable.

All of this has helped make this long-running debate one of the most frustrating I’ve seen at the Capitol.

There’s not a lot of empathy on either side, frankly. LGBT advocates don’t seem too interested in the practical and spiritual ramifications if, say, a Catholic adoption agency must choose between adhering to the tenets of its faith and maintaining the support that’s vital to staying open. Nor do I sense many members of the faith community have devoted much thought to the grief a gay couple might feel if such an agency represents their best opportunity to raise a child, and they’re turned down.

It’s easier to holler about “discrimination” or “liberty,” as if either is a one-way street.

What we needed was collaboration to produce a law both sides could live with. It appears, however, that too many people are uninterested in the “give” such an exercise would take.

Instead, both sides seem resigned to the inevitability of litigation of the slight, but real, overlaps between their rights and interests. The lawsuits will come regardless of whether Gov. Nathan Deal signs House Bill 757, which legislators passed Wednesday. They were inevitable the moment last summer the U.S. Supreme Court declared samesex marriage legal, opening up a huge tract of unmapped legal ground.

The imperative all along has been for legislators to draw the rough outlines for answering these questions, leaving the finer details to the courts. That’s how our system of self-governance is supposed to work. The alternative is handing judges a mostly blank slate and hoping they’ll return a pretty legal picture. That’s the kind of uncertainty our system is supposed to prevent.

HB 757 is an effort to reduce that uncertainty. There’s little question it favors the faith community, mostly by freezing in place some elements of the status quo. But not others: Its concrete effects remain in the religious, nonprofit sphere, not the stream of commerce. It raises the legal bar for government infringement on religious belief, but with important, if not absolute, caveats.

In short, I don’t think it’s the discriminatory bill its opponents claim, some in press releases they may as well have written before they saw the final bill. If I thought it were, I would oppose it because that’s never been my aim.

It’s probably the best rough outline the legislative process could give us. The judges will have to take it here. I’m afraid we were never going to avoid that.